The Science and Controversy of Offshore Wind: BOEM Embarks on New Research Efforts While Fishing Groups Take Aim at An Offshore Wind Lease In New York

Wednesday, October 11, 2017

The U.S. Bureau of Ocean Energy Management (BOEM) is embarking on several studies to better understand offshore resources and species. At the same time, fishing interests have sued BOEM to block an offshore wind lease, challenging not only the lease itself but the process that BOEM uses to award leases and conduct its environmental analysis under the National Environmental Policy Act (NEPA).

Fighting Over Fish

On September 12, 2017, the Fisheries Survival Fund and other fishing interests asked a federal judge to block a $42.5 million lease awarded by BOEM to Statoil Wind off the coast of New York. The case, filed in late 2016, was brought by a coalition of fishing groups and municipalities who argue that the project poses a serious threat to fishing interests, navigation, and the environment. The case represents the first real test of BOEM’s offshore leasing program for wind energy development and comes against the backdrop of numerous studies underway on the impact of offshore wind on fish populations and other marine life.

In their September 12 motion for summary judgment, the Fisheries Survival Fund and other plaintiffs allege that BOEM violated NEPA and the Outer Continental Shelf Lands Act by considering only those environmental impacts associated with the lease itself (which are minimal and related to exploration/evaluation activities), as opposed to all of the impacts associated with the ultimate development of a 100+ turbine offshore wind farm. They also took aim at BOEM’s regulatory process, alleging that it lacked transparency and failed to meaningfully consider the full impact of an eventual wind farm on both the environment and the seafood industry. BOEM finalized its regulations long ago, and a challenge to those regulations at this stage may come too late. But the plaintiffs’ argument that BOEM “segmented” its environmental analysis may hinge on how the court views the issuance of a wind energy lease: as the first in a series of events that may ultimately lead to development of a wind farm (as BOEM sees it), or as a single event with a foregone conclusion (as the plaintiffs see it). BOEM’s response is due on October 24, 2017, and a decision is likely in early 2018.

Conserving Birds & Bats

In partnership with Deepwater Wind, the U.S. Fish and Wildlife Service, the University of Rhode Island and the University of Massachusetts Amherst, BOEM is funding a study that will aid conservation efforts for key bird and bat species. Since 2013, the U.S. Fish and Wildlife’s Division of Migratory Birds, in collaboration with URI and UMass Amherst, has deployed advanced VHF telemetry to track the movement of high-priority bird and bat species, including common terns, American oystercatchers, and certain species protected under the Endangered Species Act (ESA), such as roseate terns and piping plovers.

Deepwater Wind recently installed a new tracking station on the easternmost platform at the Block Island Wind Farm (the nation’s first offshore wind farm), which will provide data on any tagged species that fly within a 20-mile radius of the wind farm. This station is among more than 40 tracking stations along the U.S. East Coast that, with funding provided by BOEM, researchers are using to study movements of birds and bats between nesting sites and foraging areas, as well as movements when departing for fall migration. This information will help BOEM to determine to what extent these species fly over federal waters where potential exists for future energy development projects, including wind farms. Ultimately, this cooperative effort will enable BOEM and project developers to better evaluate the potential impacts to marine and migratory birds from offshore wind projects and to design appropriate mitigation and conservation strategies for future projects.

Understanding Coral, Canyons, and Seeps in the Atlantic

BOEM, the United States Geological Survey (USGS), and the National Oceanic and Atmospheric Administration (NOAA) have launched a 4.5 year study to better understand little-known natural resources of the deep ocean. The study, known as the Deep Sea Exploration and Research of Coral/Canyon/Seep Habitats (or DEEP SEARCH), will explore geological and biological aspects in deep water locations between 30 and 130 miles off the mid-Atlantic and Southeast Coasts (from Virginia to Georgia). Many of these features—such as corals and naturally occurring gas seeps, and the organisms that inhabit them—are poorly understood.

The Woods Hole Oceanographic Institution has provided an autonomous underwater vehicle (AUV) to aid the research, which will occur in three deep-sea expeditions over the next three years. The AUV, Sentry, is equipped with highly advanced electronics, including instruments to map seafloor bathymetry, measure water chemistry, and collect images of benthic habitats and organisms. Scientists will use this data to create high-resolution maps of the seafloor and document deep-sea communities. BOEM will then use this information to inform environmental reviews under NEPA and offshore energy decision-making, such as lease locations and specific permitting actions.

What’s Next?

In addition to the above, BOEM is conducting environmental mapping and studies on marine mammals and other aspects of the offshore environment. By taking a science-based approach, BOEM and others hope to foster offshore wind energy development in an environmentally responsible manner. At the same time, challenges persist: some aspects of the ocean are not well understood, while the fishing industry and other groups perceive certain offshore wind projects as a threat to their business. Like all large infrastructure—especially new infrastructure—offshore wind can expect environmental and legal challenges as it grows in the U.S. How those challenges play out remains to be seen.

Brook Detterman's practice encompasses both traditional environmental matters and emerging issues in the areas of energy and climate change. Brook's experience includes complex environmental litigation, transactional due diligence, and regulatory counseling, with a focus on the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and other state and federal environmental laws.

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